We understand the problem: the VBAC (vaginal birth after cesarean) rate is too low. It’s time for a bold solution. We need a “VBAC Court.”

VBAC is a safe option for most women, and almost 3/4 of women who opt a VBAC will deliver vaginally and avoid another C-section. But we also know that approximately 0.8% of women attempting VBAC will end up with a ruptured uterus, a catastrophic complication that threatens the life of both baby and mother. And we know that 10% of these babies will die or experience severe neurologic impairment.

In other words, 0.08% of babies will die or be profoundly brain damaged. It is a small risk, on the order of many other risks accepted in pregnancy. Why are the other risks accepted, and the risk of VBAC increasingly considered unacceptable by malpractice insurers, hospitals and obstetricians (who are often at the mercy of malpractice insurers and hospitals who set the rules under which they work)?

There are two main reasons:

1. We KNOW that some babies will die or be left brain damaged. Only 0.08% of babies (80/100,000) sounds like a small number until you consider how many women are suitable VBAC candidates. Nearly 400,000 women have repeat C-sections each year. Not all are candidates for VBAC, but most are. With a liberal VBAC policy, therefore, we KNOW that more than 200 babies will die or be rendered brain damaged each and every year.

2. In each and every one of those deaths, attempted VBAC will be the definitive proximate cause of death or injury. Therefore, there is no way to legally defend these cases. And despite the fact that women sign elaborate informed consent agreements prior to attempting a VBAC, when disaster occurs, many sue and claim that they didn’t really understand the risk, and they win.

Not surprisingly, malpractice insurers, hospitals and obstetricians do not want to deliberately take on the KNOWN risk that some proportion of babies WILL inevitably die or be left brain damaged by a VBAC, and they will be left open to major lawsuits and multimillion dollar payouts.

It sounds like an insoluble problem until you consider that it is not the only problem of this type. It is almost exactly the same dilemma faced by vaccine manufacturers. They make a product that saves lives on a massive scale, but we KNOW that a tiny percentage of children who receive vaccines WILL die or be rendered neurologically impaired. The parents will sue and they will win because, the vaccine is the proximate cause of the death or disability. Vaccine manufacturers announced that they would simply stop producing vaccines because of inevitable lawsuits.

The government stepped in and created the Vaccine Court.

Though it is knows as the “Vaccine Court,” it is, in reality, the Office of Special Masters of the U.S. Court of Federal Claims. Its creation rests on the premise that some deaths from vaccines are inevitable and that lawsuits are a cumbersome, inefficient means of addressing that reality. The Vaccine Court is a form of no-fault insurance. It allows parents and children to receive compensation for death and injuries without filing a lawsuit. It allows vaccine manufacturers to continue supplying vaccines without defending lawsuits over the vaccine reactions that we KNOW will result in a small amount of deaths each year.

On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines…

The Vaccine Court works. Each year tens of millions of dollars are paid out to the few families affected by vaccine related death or neurologic injury.

It’s time for a VBAC Court, for the exact same reasons that the Vaccine Court was created. VBAC, like vaccination, is public health good. A liberal VBAC policy would reduces unnecessary surgeries, surgical complications, and health care costs. A VBAC Court, by instituting a no fault program for the VBAC related deaths and injuries that we KNOW will occur, will indemnify hospitals and doctors against lawsuits in the same way that the Vaccine Court indemnifies vaccine manufacturers against lawsuits. VBACs will be readily available, just as vaccines are now readily available.

Frankly, I see no other solution to the problem. Malpractice insurers, hospitals and doctors cannot and will not take on the massive liability posed by VBAC. There is currently no way to accurately predict which women will suffer a uterine rupture during VBAC and there is no accurate prediction method on the horizon. Future developments may reduce the number of babies who die or are left neurologically impaired by VBAC, but that number will never be zero.

If we want to increase the VBAC rate — and patients, doctors and health insurers very much want to increase the VBAC rate — we have no choice but to institute a no fault compensation plan.

Amy Tuteur, MD

Dr. Amy Tuteur is an obstetrician gynecologist. She received her undergraduate degree from Harvard College in 1979 and her medical degree from Boston University School of Medicine in 1984. Dr. Tuteur is a former clinical instructor at Harvard Medical School. She left the practice of medicine to raise her four children. Her book, Push Back: Guilt in the Age of Natural Parenting (HarperCollins) was published in 2016. She can be reached at DrAmy5 at aol dot com...
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